Terms of Use

Pursuant to this Sales Order (“Sales Order”) by and between AniCell® Biotech and you (“Buyer”), AniCell® Biotech has agreed to sell, and Buyer has agreed to purchase, certain veterinary regenerative products (the “Products”). Buyer and AniCell® Biotech agree that the Sales Agreement and any recurring sales transaction between Buyer and AniCell® Biotech shall be governed and controlled by this set of AniCell® Biotech standard terms and conditions of sale (“Terms”) and the Sales Order and Terms together (the “Agreement”).

Payment

All payments shall be due and payable in accordance with the payment terms set forth in this Agreement. All amounts payable hereunder shall be paid when due, time being of the essence. Any amount due hereunder not timely paid shall incur a late charge on the unpaid balance of 1.5% per month or portion thereof (or such lesser amount as may be the maximum permitted by law). Buyer shall reimburse AniCell® Biotech any and all attorneys’ fees and other costs incurred by AniCell® Biotech in collecting any payment due hereunder.

Taxes

All amounts payable hereunder are exclusive of any applicable federal, state, or local taxes and Buyer agrees to be responsible for the payment of same or to assist AniCell® Biotech in the collection, administration, and remittance of any such taxes to the extent same are the legal responsibility of AniCell® Biotech. Ownership; Risk of Loss; Security Agreement.

Until Buyer has paid the purchase price in full, title to and ownership of the Products shall remain with AniCell® Biotech and Buyer shall not be entitled to, and shall not, sell, assign, convey, rent, pledge, or otherwise transfer any interest in the Product to any other party, including, without limitation, using the Product as security for borrowing or any other purpose.

Although title shall not pass until the purchase price is fully paid, Buyer agrees to be fully responsible for any loss of or damage to the Product from and after the time that AniCell® Biotech delivers the Product to Buyer.

Buyer hereby grants to AniCell® Biotech a purchase money security interest in the Product (and all proceeds thereof) until the purchase price for same is paid in full. Buyer shall execute any and all financing statements and take any other action deemed necessary or desirable by AniCell® Biotech to perfect its security interest.

Buyer Responsibilities

Buyer shall at all times be responsible for all aspects of patient care and treatment, including, without limitation:

• diagnosis of patients;
• obtaining any required consent of owners, guardians, or other parties;
• reading all TREATMENT AND HANDLING INSTRUCTIONS prior to use of regenerative treatment;
• preparation of patients for treatment, including, without limitation, ensuring adequate immobilization and/or sedation of equine and other patients to prevent uncontrolled kicking, agitation, distress, or pain;
• provision of any and all treatment including, without limitation, regenerative treatment with the Product, emergency treatment, or otherwise;
• provision of appropriately trained and licensed personnel to operate the Product and provide proper patient care;
• provision of any other products or services necessary to ensure proper and safe patient care. BUYER ACKNOWLEDGES THAT THE PRODUCT CONSISTS OF SOPHISTICATED BIOLOGIC PRODUCT. IF THE PRODUCT IS NOT USED PROPERLY, INJURY COULD RESULT. AS SUCH, BUYER IS FULLY RESPONSIBLE FOR ENSURING THAT ALL USE OF THE PRODUCT IS COMPLETED IN A SAFE AND PROPER MANNER, BY PROPERLY TRAINED AND LICENSED INDIVIDUALS, AND IN FULL COMPLIANCE WITH ALL INSTRUCTIONS FOR USE PROVIDED BY ANICELL® BIOTECH. BUYER’S USE OF THE PRODUCT IS AT ITS OWN RISK.

Warranty; Exclusions

AniCell® Biotech warrants to Buyer that, all products have been certified to an acceptable biologic standard for LAL endotoxins, Mycoplasma, and Bioburden by an independent lab, the Product will be free of defects in materials and workmanship and will function in substantial conformity with AniCell® Biotech Standard Operating Procedures and healing profile.

AniCell® Biotech provides a money back guaranty for non-experimental indications. Should AniCell® Biotech products not perform to your existing standard of care, AniCell® Biotech reserves the right to retreat the indication and participate in the treatment protocol in order to achieve better results. Should this additional treatment still not achieve the standard of care, AniCell will refund the value of the product. This warranty shall not apply to (and AniCell® Biotech shall have no obligation with respect to) any alleged defect to the extent of:

• any alteration, addition, attachment to, or modification of the Product not authorized in advance in writing by AniCell® Biotech that interferes with normal and satisfactory operation or maintenance;
• noncompliance with handling and treatment of the Product;
• use of any anti-inflammatories or unapproved additions other than lidocaine or sterile saline in order to dilute the product or other items not manufactured by AniCell® Biotech;
• modifications or additions to the Product or any portion thereof, including, without limitation, refurbishment of consumables, by any party other than AniCell® Biotech;
• neglect, misuse, accidents, treatment errors, treatment of chronic wounds or other acts or conditions not within the reasonable control of AniCell® Biotech;
• any defect in connection with which Buyer fails to notify AniCell® Biotech in writing of the defect within 30 days of the date the defect was or should have been discovered. Any warranty provided by AniCell® Biotech is non-transferable by Buyer.

Disclaimer

AniCell® Biotech IS NOT A DRUG. It is an acellular bioscaffold categorized as a medical device. Drugs are used to treat diseases. Anything that changes chemistry is a drug. Our products are solely used in injuries as either a biological bandage wound covering to aid in wound healing or as an implantable liquid bioscaffold to serve as a matrix structure for tissue growth. While there are many off-label uses of our products, those uses can neither be marketed nor discussed and AniCell® Biotech does not endorse, condone, or take responsibility for any such uses or discussions.

Compliance with Law

Each party warrants and covenants that it shall do all acts necessary to comply with all federal, state, and local laws, regulations, ordinances, and codes applicable to its operations or performance under this Agreement. Buyer specifically acknowledges and agrees that the Product is not FDA-approved for use in the treatment of humans and is therefore only to be used in connection with veterinary medical practice. Need to add non FDA Approved here….

Force Majeure

If AniCell® Biotech is delayed in or prevented from performing any obligation hereunder due to causes or events beyond its control, including, without limitation, any act of God, fire, riot, embargo, strike, legal action, accidents, transportation delays, present or future law, or governmental order or regulation, such delay or non-performance shall be excused during the pendency of such condition and the time for performance extended or rescheduled by AniCell® Biotech.

Proprietary Information

All AniCell® Biotech confidential information and trade secrets (including, without limitation, AniCell® Biotech’s pricing and purchase terms) disclosed to or learned by Buyer shall remain the property of AniCell® Biotech. For a period of five (5) years from the date of disclosure to Buyer (or, in the case of trade secrets as defined under Arizona law, until such information no longer constitutes a trade secret), Buyer shall not disclose such proprietary information to any third party or use such information in any way other than as expressly authorized in writing by AniCell® Biotech. AniCell® Biotech retains all rights in and to any intellectual property disclosed to Buyer at any point in connection with the Product.

Dispute Resolution

Any dispute between the parties relating to this Agreement, whether or not a contract claim, shall be determined by binding and non-appealable arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within thirty (30) days of a party giving notice to the other of a proposed choice for an arbitrator, then by a single arbitrator appointed by the Phoenix, Arizona office of such association. The arbitration shall be conducted through the Phoenix, Arizona office of such association and the arbitration costs shall be divided and borne equally by the parties.

Notices

All notices under this Agreement shall be in writing and shall be deemed to have been duly given and received only on the business day when personally delivered or transmitted successfully via facsimile, one (1) business day following the business day when deposited with a commercially respected overnight delivery service such as Federal Express, service fees prepaid, or three (3) business days following the day when sent by certified mail, return receipt requested, postage prepaid, to the intended recipient at the address or facsimile in the Sales Agreement.

Miscellaneous

No waiver by either party of any term of this Agreement shall affect such party’s rights to enforce such term in a subsequent instance. No waiver shall be binding upon a party unless confirmed in writing by that party. This Agreement may not be modified or amended other than in writing executed by both parties. This Agreement is severable, in that the invalidity of any term herein will not affect the enforceability of the remaining portions of this Agreement. This Agreement shall be governed by the laws of the state of Arizona, excluding conflict of laws principles. The headings contained in this Agreement are for the convenience of the parties only and shall not be interpreted to affect in any way the language contained herein. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may assign this Agreement to a parent, subsidiary, or other affiliated party without the consent of the other party. AniCell® Biotech shall have the right to sublicense or subcontract any of its responsibilities hereunder. Unless otherwise agreed in advance in writing by AniCell® Biotech, Buyer shall remain liable for all assigned obligations in case of any failure of performance thereof on the part of any assignee of Buyer. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Limited Manufacturer Warranty (the “Manufacturer Warranty”)

Certain of the Product sold or provided by AniCell® Biotech comes with a warranty from the original manufacturer of such Product. Manufacturer Warranties may carry different return and warranty policies than Product covered under the Limited Warranty offered by AniCell® Biotech, AniCell® Biotech makes no claims or guarantees with respect to a Manufacturer Warranty. To return any Product under a Manufacturer Warranty for reason of defect, please contact AniCell® Biotech to obtain the manufacturer’s telephone number or address and contact the Manufacturer directly. All warranty service or technical support provided on Product under a Manufacturer Warranty is provided by the manufacturer, not by AniCell® Biotech. Please contact AniCell® Biotech or the manufacturer directly for support or other information.

Technical Support

AniCell® Biotech provides to Buyer a range of basic technical support options for the Product via a variety of on-line, telephone, and other methods. AniCell® Biotech may change the means through which it provides technical support at any time. It is likely that many of Buyer’s questions will be answered by the documentation shipped with, and information loaded on, the Product. Set forth below are some current technical support services and options provided by AniCell® Biotech to Buyer.

Product Manuals. A number of manuals and other publications (“Manuals”) accompany your Product. We recommend that Buyer carefully review these materials.

Telephone Support. If you cannot find answers in the Manuals, Buyer can call technical support. Call volume can vary dramatically and affect Buyer’s ability to reach ANICELL® BIOTECH technical support and/or the time that Buyer may be required to wait to speak to a technician.

Return Policies

Product may not be returned except in the case of damage or defective merchandise. AniCell® Biotech may choose to replace, or exchange Product at its discretion. Costs for shipping, handling, any applicable insurance fees, and any applicable sales taxes, which are costs that you paid when you bought the Product, are not refundable and will be deducted from any refund. Failure to follow the procedures set out in this section may result in delays in the replacement of your Product. In addition, AniCell® Biotech reserves the right to refuse to accept Product when these procedures are not followed. To return Product, you must call AniCell® Biotech Customer Service to receive a Return Merchandise Authorization (RMA) Number. You must ship the Product to AniCell® Biotech in original packaging, prepay shipping charges, and insure the shipment or accept the risk of loss or damage during shipment. Any returned Product shipped C.O.D., or without a RMA Number visible on the exterior of the carton, may be refused by AniCell® Biotech.